January 30, 2007

The Lobster Conviction

On January 22, 2007, I received an e-mail from Dianne Blandford. She related the tale of her husband’s conviction for importing lobster tails from Honduras in supposed violation of the Lacey Act. The tale (pun intended) would be funny of it were not true. Mr. Blandford’s conviction demonstrates the dark side of prosecutorial discretion and oversight. The Lacey Act makes it a crime to import “fish or wildlife taken … in violation of any foreign law.” In this instance, the foreign law was allegedly Honduran fishing regulations that had been declared

null and void in Honduras. In looking into the case, I discovered that a friend of mine, Paul Rosenzweig, had written about the case for the Heritage Foundation. Mrs. Blanford sent me a copy of the article. Paul is a former DOJ environmental criminal prosecutor. Alot of this post is lifted from Paul's article. I tried to contact Paul to talk about this case; however, he was out of the country. Thanks, in advance, Paul, for letting me use your story.

Based upon an allegedly anonymous message that “undersized (3 & 4 oz) lobster tails” were scheduled to arrive in Bayou La Batre, Alabama, on February 5, 1999, the National Marine Fisheries Service ("NMFS") agents impounded 70,000 pounds of Caribbean spiny lobster. The NMFS agents researched Honduran regulations for six months looking for a reason to keep the lobster meat and prosecute the importers and distributors. After engaging in the six month research project, the NMFS focused on three Honduran regulations: 1) a 1993 regulation that details the processing and packaging of fish harvested in Honduran waters (promulgated pursuant to a 1973 statute), which “mentioned” of packaging of the catch in cardboard boxes; 2) a regulation that prohibited harvesting any lobsters with tails shorter than 5.5 inches; and 3) a regulation that prohibits destroying or harvesting “eggs, or the offspring of fish, chelonians or other aquatic species for profit.” After the six months of research, the NMFS agents then inspected the detained lobster tails and determined: only about three percent of the lobster tails turned out to be less than 5.5 inches long; and seven percent showed any evidence of having been egg-bearing lobsters. Both of these facts are a strong indication that anyone was intentionally harvesting young lobsters or egg-bearing lobsters. Finally, because all the lobsters were in clear plastic bags instead of the “mentioned” cardboard boxes, the entire shipment was declared illegal and formally seized.

Blandford was charged with the charges being predicated on the three Honduran regulations, applied through the Lacey Act. These alleged Lacey Act violations were primarily utilized to trigger more serious charges such as criminal conspiracy, smuggling, and felony money laundering.

As Paul Rosenzweig wrote in his article: “If importing the lobster in bags instead of boxes was illegal, prosecutors reasoned, then planning to import it was criminal conspiracy, the actual importation was smuggling, and payments became felony money laundering.” He goes on to describe a hearing as follows: “At the District Court’s foreign law hearing, [another defendant] presented copious evidence showing that the Honduran regulations at issue were invalid. The size restriction had never been signed by the President of Honduras, an absolute requirement for such a regulation under Honduran law. The Attorney General of Honduras supplied an opinion, confirming other testimony, that because the size restriction was not signed it could never have had the force of law. [Another defendant] presented other witnesses, including a former Honduran Minister of Justice, who testified that the egg harvesting regulation was never intended to apply to animals that happened to bear eggs when caught. The prohibition against harvesting or destroying eggs for profit was meant to do just that, to prevent the harvesting of eggs themselves (turtle eggs in particular).”

Undaunted, the Government somehow convinced the trial court to ignore the extensive evidence presented and instead accept the testimony of a single, mid-level Honduran bureaucrat, Liliana Paz (who’s job description as the “Secretary-General” of the Honduran Ministry of Agriculture and Livestock” was to be “an instrument of communication”) and who has no expertise or authority to render legal opinions, testified that all of the regulations were valid and had the force of law. When the dust cleared after trial, Blandford was convicted on a general verdict and sentenced to eight years in prison. Of course the Government issued its press releases.The National Oceanic and Atmospheric Administration (NOAA), the agency that includes the NMFS, issued its press release.

When the 11th Circuit issued its opinion after the appeal, two of the three appellate judges effectively declared Honduras a banana republic, unfit to construe its own laws. The Court’s Opinionheld, however, that it based upon the “political question” doctrine, would be unwise to disagree with the prosecutors’ interpretation of the foreign law. Yeah, right. After the 11th Circuit rendered its opinion, the Honduran Court determined held that the size limit was void and declared that it had never had the force of law. All of this, and more, was provided to the Department of Justice by the Honduran Embassy.

This case highlights a dangerous and growing trend to expand criminal liability towards normal social and economic conduct. In this instance, the federal government, through the Lacey Act, is claiming to enforce foreign laws against United States citizens, laws that were not made by any legislative body in the United States or by some executive agency, but by a foreign government with unfamiliar procedures.

Four words that may have stopped this prosecutorial insanity – prosecutorial discretion and oversight. David Uhlmann, can you tell me where the oversight was?